RAJINDER SINGH vs State of Haryana

AFTER hearing the learned counsel for the petitioner for quite some time, order was reserved in this case.

THERE is a delay of 49 days in the filing of the revision petition, in addition to the period of 90 days statutorily available for filing such revision. In the application for condonation of delay, the only ground advanced is that the delay has been caused on account of serious illness of the petitioner, which occurred after the passing of the impugned order and the petitioner remained on bed for a period of about two months and it took about three months to recover. The petitioner being an old ailing person could not contact his counsel for filing the revision petition. A perusal of the condonation application reveals that it has been prepared in a very casual manner. Apart from there being no supporting material such as the prescription of a doctor or description of the type of ailment and the period of treatment, the indifferent approach is evident from the fact that the application does not even indicate the number of days of delay. In this regard we may observe that the Hon''ble Supreme Court in the case of D. Gopinathan Pillai Vs. State of Kerala Vs. Another [(2007) 2 SCC 322] has held that ''When a mandatory provision is not complied with and when the delay is not properly, satisfactorily and convincingly explained, the court cannot condone delay, only on the sympathetic ground''. In a very recent judgment, the Hon''ble Apex Court in the case of State Bank of India Vs. B.S. Agriculture Industries (I) [2009 5 SCC 121] has held as under :- ''Section 24-A of the Consumer Protection Act, 1986 (referred to as the Act hereafter) expressly casts a duty on the Commission admitting a complaint, to dismiss a complaint unless the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that the complainant had sufficient cause for not filing the complaint within the period of two years from the date on which the cause of action had arisen. The section debars any fora set up under the Act, admitting a complaint unless the complaint is filed within two years from the date of which the cause of action has arisen. Neither the National Commission nor the State Commission had considered the preliminary objections raised by the appellant that the claim of the respondent was barred by time. '' Therefore, the claim of the respondent on the basis of the allegations contained in the complaint was clearly barred by limitation as the two-year period prescribed by Section 24-A of the Act had expired much before the complaint was admitted by the State Commission. This finding is sufficient for allowing the appeal. On its plain averments, the complaint is barred by time and ought to have been dismissed as such but curiously this aspect was not examined by any of the consumer fora although specific plea to this effect was taken by the Bank. Since the complaint is barred by time and liable to be dismissed on that count, it would be unnecessary to examine the other grounds of challenge.''

According to Regulation No. 14 of the Consumer Protection Regulations, 2005, the revision petition shall be filed within 90 days from the date of the order or the date of receipt of the order, as the case may be. Accordingly, the ratio of the judgments of the Hon''ble Apex Court (supra) is squarely applicable to the case under consideration. Therefore, the revision petition is liable to be dismissed on the ground of limitation.

HOWEVER, even on the merits of the case, the thrust of argument advanced by the learned counsel for the petitioner is that since the Sub-Divisional Officer, Ambala vide his letter addressed to the Civil Surgeon dated 7th of June, 2007 after an inquiry from the Tehsildar has stated that the date of birth of Dinesh Kumar son of the complainant has been verified to be 23rd of October, 1977, the Registering Authority had no option but to comply with his order in terms of sub-para (c) of para 5.1 of Chapter-5 of Haryana Registration of Births and Deaths Rules, 2002. It is noticed that in this case, Shri Rajinder Singh, the petitioner, is seeking the birth certificate of his 29 years old son, who is in Portugal. On being asked as to whether the date of birth of his son finds a mention in the passport, the petitioner-complainant admits that there is an entry with regard to his date of birth on the basis of matriculation certificate. However, in his complaint, he does not make a mention of any such date of birth or provide a copy thereof in support as corroborative evidence to facilitate the issuance of birth certificate by the concerned Registrar of Births and Deaths. On a scrutiny of the records, it is further seen that the letter of the Sub Divisional Officer, Ambala at page 57 of the paper-book claimed to have been issued to the Civil Surgeon is dated 7th of June, 2007. This happens to be the same date on which the District Forum has passed its order. The Civil Surgeon, therefore, could not have received such a letter before the order of the District Forum. However, when the respondents-opposite parties challenged the order of the District Forum before the State Commission, it was expected of the petitioner-complainant to have raised this issue of the Sub Divisional Officer having forwarded his inquiry report to the respondents. There is nothing on record to prove that the petitioner-complainant had raised such a plea in response to the Memorandum of Appeal filed by the respondents. The order passed by the State Commission is totally silent with regard to any such order having been received by the respondents. Therefore, the contention of the learned counsel for the petitioner-complainant that the respondents have committed deficiency in service by not complying with the order of the Sub Divisional Officer, Ambala cannot be sustained. The petitioner-complainant has alleged mala fide intention on part of the respondents but for such allegation the remedy lies elsewhere. The fact remains that this being a case of unusual delay of 29 years for seeking the birth certificate when the person for whom the birth certificate has been sought has already passed matriculation examination and gone abroad, the authorities had to necessarily follow the prescribed procedure to ensure that such a certificate is not issued by misrepresentation.

THERE is yet another aspect of the case in which both the fora below have gone wrong i.e. in holding the complaint by the father on behalf of his 29 years old major son maintainable without any power of attorney or authorization from the son whose birth certificate is the subject matter of complaint. Section 2(1)(b) defines a ''complainant'' to mean '' (i) a consumer; or (ii) any voluntary consumer association registered under the Companies Act, 1956 (1 of 1956) or under any other law for the time being in force; or (iii) '' (iv) '' (v) ''

Further, sub-section (d)(ii) defines a ''consumer'' to mean any person who ''hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purpose''. (Emphasis added) Thus, a conjoint reading of the definitions of ''complainant'', ''complaint'' and ''consumer'' would legally oust the petitioner father in this case to file a consumer complaint without any authorization from his major son. Under these circumstances, both on account of delay as well as on merit the revision petition is dismissed with no order as to cost.